Supreme Court Asks White House To Weigh In On Dancing Baby Fair Use Case

from the hmmm dept

The copyright case involving Stephanie Lenz and her dancing baby is one that may finally be nearing a conclusion after many, many years -- but it's not over yet. As you may recall, Lenz posted a very brief clip of her then toddler, dancing along to a few seconds of a barely audible Prince song. This was almost a decade ago. Universal Music sent a DMCA takedown, and that kicked off a big fight over fair use, with the EFF representing Lenz and arguing that Universal Music needed to take fair use into account before issuing takedowns. The case then bounced around courts for nearly a decade with a variety of rulings, eventually getting a huge confusing mess of a ruling from the 9th Circuit last year, followed by an only marginally better mess earlier this year in an en banc decision replacing the original one.

Both EFF and Universal Music asked the Supreme Court to hear different questions about the messy 9th circuit ruling, and lots of other folks weighed in with amicus briefs, including internet companies and the RIAA (not on the same side, as you might imagine). The general consensus seemed to be that it was a long shot that the Supreme Court would bother with the case, even as it was kind of a mess, but the Supreme Court this morning kept things alive by asking the White House Solicitor General to weigh in (on page 2 of the document).

LENZ, STEPHANIE V. UNIVERSAL MUSIC CORP., ET AL.

The Solicitor General is invited to file a brief in this case expressing the views of the United States.

So... now everyone gets to sit and wonder what the hell the Solicitor General is going to say. The fact that former MPAA lawyer Donald Verrilli is no longer the Solicitor General is at least mildly encouraging, since his views on copyright appeared to be positively draconian. But it's anybody's guess how the acting Solicitor General, Ian Gershengorn, and his staff will respond to the request. I don't think Gershengorn has much experience with copyright issues, but prior to jumping into the Obama administration, he did work at Jenner & Block, which was where Verrilli worked as well. And others on the staff have been shown to have some wacky ideas about copyright in the past.

But, for now, we'll have to wait and see -- but it also means that the case is still alive. With any luck, it'll be over before Lenz's "dancing baby" graduates high school.

Filed Under: copyright, donald verrilli, fair use, ian gershengorn, solicitor general, stephanie lenz, supreme court
Companies: eff, universal music

Supreme Court Won't Hear Oracle v. Google Case, Leaving APIs Copyrightable And Innovation At Risk

from the dangerous-ruling dept

This is unfortunate, even if it was somewhat expected: the Supreme Court has now rejected Google's request to hear its appeal over the appeals court decision that overturned a lower court ruling on the copyrightability of APIs. The lower court decision, by Judge William Alsup (who learned to code Java to understand the issues), noted that APIs were not copyrightable, as they were mere methods, which are not subject to copyright.

The appeals court ruling, by the Court of Appeals for the Federal Circuit (CAFC) (famous for getting patent cases wrong over and over and over again) didn't just get things wrong, it got things laughably wrong, confusing the difference between APIs and software throughout, and quoting people entirely out of context (including taking things so out of context that it often pitted people on the same side against each other, solely because CAFC misread what they were saying). The case was appealed to the Supreme Court, and we were shocked and dismayed to see the Obama administration further reinforce the errors of the CAFC ruling in telling the Supreme Court not to hear the case. The filing by Solicitor General Donald Verrilli repeatedly confused software with APIs and insisted that there was really no difference between the two. That's just wrong. It's not a matter of debate. It's just wrong.

One would have hoped that with a ton of computer science experts explaining to the Supreme Court how CAFC got things wrong, the Supreme Court might recognize that the Obama administration was confused, but for whatever reason, the Supreme Court has declined to hear the case.

This is dangerous. The world of software and innovation relies on the kind of interoperability and the ability to connect via things like APIs. As we've noted, this is like claiming you can copyright an entire language, rather than the creative works written in those languages. Making APIs proprietary and locked up puts a ton of innovation at risk.

As for Google and Oracle directly, this probably doesn't matter much. They're two giant companies, certainly. And now that the case returns to the lower court, they'll either settle or fight it out over fair use (and hopefully win on that front as well). But saying fair use allows this is very, very different than saying there's no copyright on the API. And for smaller companies this will have a tremendous ripple effect, and will undoubtedly lead to a slower pace of innovation. The kinds of touchstones that people build on will no longer happen. Under this ruling, it basically overrules previous rulings that said pull down menus were not copyrightable. But with this ruling in place, it's hard to see how that's still true. Expect to see a bunch of ridiculous lawsuits over minor copying of functions like that.

While this case may eventually be resolved on fair use grounds (or through settlement), there are still two potential areas of hope. First, the "precedential" power of this ruling is actually somewhat limited. CAFC precedents are more or less meaningless in this context. CAFC handles all patent cases, and the only reason it heard this case was because it started as a patent case, even though those issues were resolved much earlier. So, while CAFC has made this particular ruling, it does not mean that the 9th Circuit, where this case was actually heard has to abide by it. The appeals court for the 9th circuit could rule otherwise (though it is somewhat famous for its own nutty copyright rulings).

Perhaps if this issue returns to another appeals court, and that court gets it right, the issue will return to the Supreme Court with a clear circuit split. And by then, we can hope, the people staffing the Solicitor's General office will finally include at least one person who understands the difference between code and APIs.

The really stunning thing in all of this is just how factually wrong many of the arguments were, and that the CAFC and Obama Administration bought them. These weren't questions of interpretation or opinion. They just flat out got the facts wrong, based on an astounding level of ignorance about a rather basic concept of an API not being software. Just because they both look like "code" does not make them both code. It would be nice if the people actually making these decisions weren't so easily fooled by their own ignorance.

Filed Under: api, apis, cafc, copyright, donald verrilli, scotus, software, supreme court, william alsup
Companies: google, oracle

Obama Administration Files Totally Clueless Argument Concerning Software Copyrights In Supreme Court Case

from the oh-gosh-no dept

The Obama administration made a really dangerous and ignorant argument to the Supreme Court yesterday, which could have an insanely damaging impact on innovation -- and it appears to be because Solicitor General Donald Verrilli (yes, the MPAA's old top lawyer) is absolutely clueless about some rather basic concepts concerning programming. That the government would file such an ignorant brief with the Supreme Court is profoundly embarrassing. It makes such basic technological and legal errors that it may be the epitome of government malfeasance in a legal issue.

We've written a few times about the important copyright question at the heart of the Oracle v. Google case (which started as a side show to the rest of the case): are software APIs covered by copyright. What's kind of amazing is that the way you think about this issue seems to turn on a simple question: do you actually understand how programming and software work or not? If you don't understand, then you think it's obvious that APIs are covered by copyright. If you do understand, you recognize that APIs are more or less a recipe -- instructions on how to connect -- and thus you recognize how incredibly stupid it would be to claim that's covered by copyright. Just as stupid as claiming that the layout of a program's pulldown menus can be covered by copyright.

The judge in the district court, William Alsup, actually learned to code Java to help him better understand the issues. And then wrote such a detailed ruling on the issue that it seemed obvious that he was writing it for the judges who'd be handling the appeal, rather than for the parties in the case.

Unfortunately, the judges at the federal circuit court of appeals (CAFC) didn't pay attention and made a completely ignorant ruling, in which it became so clear that they didn't understand the difference between software and an API that it was almost embarrassing. The decision quoted people in ways that were completely out of context, where the CAFC judges clearly misunderstood what was being said. This ruling would fundamentally kill off important forms of innovation if allowed to stand. It would be a disaster.

So, of course, the case has been appealed to the Supreme Court -- and that's where Donald Verrilli steps in. The Supreme Court asked the Solicitor General if the US had an opinion on the case. This apparently led to a healthy debate within the Obama administration over the position it should take. I know that there are people within the administration who understand these issues. Hell, Ed Felten has just been appointed deputy CTO for the administration and he, of all people, recognizes the difference between an API and software (in fact, he signed onto an amicus brief saying as much). He also (more than most) understands the copyright side of things and the potential impact of getting this wrong.

But instead of listening to the people who actually understand the technology, it appears that Verrilli sided with the copyright maximilist/technology-ignorant faction in the government. The final brief argues that the Supreme Court should stay out, that the CAFC got it right, and that it's impossible to distinguish between APIs and software. Because Donald Verrilli has absolutely no clue how software works. That's a fundamentally ridiculous argument, and argued out of near total ignorance of the basic facts of this case.

Just as a quick refresher, copyright law clearly states that:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

An API is, quite simply, a "system or method of operation." It's not copyrightable. That should be the end of the story. And yet, everyone who doesn't get this keeps arguing that an API is the same thing as software itself. This is just flat out wrong. But Verrilli makes the same mistake:

Despite the inherently functional character of all computer code, the Copyright Act makes clear that such code can be copyrightable. Nothing about the declaring code at issue here materially distinguishes it from other computer code, and petitioner has identified no genuine conflict of authority concerning Section 102(b)’s applicability to circumstances like these. Although petitioner has raised important concerns about the effects that enforcing respondent’s copy-right could have on software development, those concerns are better addressed through petitioner’s fair-use defense, which will be considered on remand.

No, no, no and no. Everything about the declaring code distinguishes it from other computer code if you understand the first thing about computer programming. One is computer code. One explains an interface for communicating with computer code. They're fundamentally different things.

It's like arguing that there is fundamentally no difference between a recipe and a fully cooked meal.

And yet, that's exactly what Verrilli and the Obama administration are now arguing to the Supreme Court. Because they don't understand even the most fundamental things about code, and assume that because an API looks like computer code (because whoever wrote this brief is ignorant of coding), they're the same thing.

Later in the filing, Verrilli, again, seems to assume that an API is the same thing as "computer code."

If the Copyright Act contained no explicit references to computer code, one might reasonably conclude that such code is not protectable “expression” at all. Computer code differs in a fundamental way from many traditional means of literary expression. A book or newspaper article is meant to be read and comprehended by a human being as a description of an idea or story. Although many copyrightable written documents explain how practical tasks should be per-formed, there is typically a clear distinction between the written explanation and the actual performance of the task. Computer code, by contrast, is both expression and the actual means by which a computer is induced to perform the desired function. It therefore would not be unnatural to describe computer code as a “method of operation” or “system.” Nor would it be unreasonable to conclude that, as between a book on bicycle-building and the actual construction of a bicycle, computer code is more analogous to the latter.

Again, the entire basis of this paragraph is arguing something no one is arguing against. Everyone agrees that computer code is copyrightable. What we're arguing is that APIs are not computer code -- because they're not. But because Verrilli and others can't seem to wrap their head around this, they just lump it all together. And the argument, based on this faulty premise continues:

The Copyright Act as a whole makes clear, however, that the functional character of computer code cannot be sufficient to bring it within Section 102(b). If that were so, no computer code would qualify for copyright protection;

This makes no sense. At all. Of course, computer code is copyrightable. But an API that is just a method of how to interact with that code is not computer code.

yet the Copyright Act unequivocally recognizes that a person can own a copyright in computer code.... Rather, the uncopyrightable “method of operation” or “system” or “process” is the underlying computer function triggered by the written code—for example, an algorithm that the computer executes to sort a data set. The code itself, however, is eligible for copyright protection.

Again, yes, of course the code is copyrightable. But the code is not the API. It's incredible how fundamentally the Solicitor General doesn't seem to grasp this simple concept.

When the filing eventually tries to get around to the difference between an API and software code itself, it basically just throws up its hands, saying "well, it looks like code, so it's all the same to us."

That distinction does not withstand scrutiny. Both declaring code and implementing code ultimately perform the same practical function: They instruct a computer to work. The declaring code tells the computer to call up the implementing code, and the implementing code tells the computer to perform an operation, such as executing a sorting algorithm. Both are necessary components of a Java or Android method. And neither the declaring code nor the implementing code is what a programmer physically types when invoking a method.

Yes, and the recipe and the ingredients are both "necessary components" of a meal, but that doesn't make them the same thing. Hell, to be more specific, the recipe and the description of how to prepare a meal are both necessary and they look fairly similar. But in copyright law the recipe is not copyrightable, while the description may be. That's the same thing with software code and APIs. But because the folks who wrote this brief are either ignorant -- or ridiculously chose to ignore those who do understand these things -- we get this absolutely embarrassing brief from the US government. It's a travesty.

Furthermore, Verrilli seems to be suggesting that the important Lotus v. Borland case which found that the layout of a computer program's menu structure were not covered by copyright, was decided incorrectly!

The precise rationale of Lotus is not clear. Parts of the opinion purport to rest on the proposition that Section 102(b) can foreclose copyright protection for original expression.... But other parts of the opinion seem to apply a principle analo-gous to the merger doctrine, to the effect that, be-cause there was only one menu hierarchy that would allow users to operate the spreadsheet program in substantially the same way, the menu hierarchy (un-like the underlying code) could not acquire copyright protection.... Whatever the rationale of Lotus, however, the decision cannot reasonably be read to treat Sec-tion 102(b) as applicable to computer code itself, a form of expression that the Copyright Act clearly protects and that the First Circuit took pains to distinguish.

Also very wrong, is Verrilli's repeated claim that these are issues that can be handled by a fair use analysis, rather than the question of whether or not API's are copyrightable at all:

Indeed, many of petitioner’s specific contentions will be relevant to its fair-use defense on remand. For example, although it would be anomalous to use Section 102(b) to distinguish between different segments of a single work of authorship..., Section 107(3) instructs courts to consider “the amount and substantiality of the portion [of a copyrighted work] used in relation to the copyrighted work as a whole” in adjudicating a fair-use defense. That petitioner copied only respondent’s declaring code while writing its own implementing code should therefore be a relevant factor in the lower courts’ fair-use analysis.

But this, too, is wrong. There's a big difference in saying "this is not copyrightable" and "this can be used thanks to fair use." Fair use is (unfortunately) limited and dependent on a number of factors. Something that is not covered by copyright is open to all comers. The difference is really important and the Solicitor General doesn't even care at all.

Unfortunately, the Supreme Court often follows the Solicitor General's advice on cases (though, not always). If it does so here, it would be a travesty and truly dangerous for innovation. As a ton of top computer experts (including now deputy CTO Felten) noted in their own brief (put together by the EFF), the lack of copyright in APIs has been a key element in defining the way the digital world works. To find otherwise would be a massive hit to basic innovation. As that brief explained

Today, open, uncopyrightable APIs continue to spur the creation and adoption of new technologies. When programmers can freely reimplement or reverse engineer an API without obtaining a costly license or risking a lawsuit, they can create compatible software that the interface’s original creator might never have envisioned or had the resources to develop. Moreover, compatible APIs help enable people to switch platforms and services freely, and to find software that meets their needs regardless of what browser or operating system they use. Without the compatibility enabled by the open nature of APIs, consumers could be forced to leave their data and programs behind when they switch to a new service.

The freedom to reimplement APIs also helps developers rescue “orphan” software or data—systems that are no longer supported by their creators. When a company stops supporting a computer platform or service, the ability to freely reimplement APIs protects the communities that rely on that software. Government entities and non-profits are especially susceptible to the orphan programs problem as they often cannot afford to upgrade and are left using legacy technologies for years or decades.

It would be truly ridiculous that, just because the MPAA's former top lawyer is so ignorant that he can't comprehend the difference between an API and actual software, that the Supreme Court would allow such a terrible ruling as CAFC's to stand.

Filed Under: api, code, copyright, donald verrilli, method, software, supreme court
Companies: google, oracle

DOJ Still Trying To Hide The Fact It Flat Out Lied To The Supreme Court About Domestic Surveillance

from the because-terrorism dept

Last year, we noted that US Solicitor General Donald Verrilli had lied to the Supreme Court in Amnesty International's lawsuit about warrantless wiretapping. If you don't recall, Amnesty International had sued about the program, but the US government successfully got the case tossed by arguing that Amnesty International had no proof that their communications were tapped, and thus they had no standing to sue. The Supreme Court appeared troubled by the fact that no one could sue unless they somehow knew for a fact they were being spied upon, but eventually sided with the government, in large part because of one of Verrilli's false statements.

Specifically, he claimed that others would have standing to sue, because if the government used the information obtained via such a warrantless wiretap (under Section 702 of the FISA Amendments Act) it would have to inform those who were being charged with a crime because of that information. It was only much later, when Dianne Feinstein was bragging about how effective Section 702 was in stopping "terrorists" (during a Senate debate on renewing the FISA Amendments Act) that it became clear that Verrilli had made false claims to the Supreme Court. Because in her bragging, she mentioned some specific cases that she said made use of Section 702 -- and the lawyers for the defendants in those cases quickly realized that they were never informed about that.

To his credit, Verrilli himself not only claimed that he was misled by national security lawyers, but ordered that the practice be changed, and some defendants have since been informed.

Of course, to some, that has been too little too late. Back in November, we noted that Senators Mark Udall, Ron Wyden and Martin Heinrich pointed out a second false statement that Verrilli made to the Supreme Court in the same case. Specifically, the DOJ and Verrilli told the court that the NSA would have to have "targeted the communications" of someone that Amnesty was talking to, and that was "highly speculative" for Amnesty to assume that was true. But, as the Senators pointed out, it was later declassified that the 702 program was not just about collecting the communications to or from "targeted" individuals, but also any communications about them.

While this may seem like a small deal, it's actually a very big deal, because it could likely mean that the communications of many Americans were collected without any sort of warrant. It turns out that in December, the DOJ responded, but that response has just been released. In it, the DOJ insists that lying to the Supreme Court concerning the fact that Section 702 allowed for the collection of purely domestic communications without a warrant if they were merely "about" a target (rather than to or from that target) was really no big deal at all and not relevant to the case.

Your letter raises questions regarding the now-declassified "about" collections that have resulted in the acquisition of some wholly domestic communications as a result of Section 702 surveillance and whether the government's representations in Clapper v. Amnesty International were incomplete or misleading for failing to refer to such collections. The government acted appropriately by not addressing the "about" collections in Clapper v. Amnesty International because the existence of this type of collection was classified throughout the period during which the case was briefed, argued, and decided, and because those collections did not bear upon on the legal issues in the case. At all times, the Department and the Office of the Solicitor General have a duty of candor in our representations to the Supreme Court, and it is a duty we take extremely seriously. The Department and the Office of the Solicitor General also have a duty to respect the classified status of information, and that is also a duty we take extremely seriously. In litigation, we must take pains to avoid discussing matters that are unnecessary to the resolution of matters before the Court when those matters might disclose classified information or undermine national security, while ensuring that the Court has all of the information relevant to deciding the issues before it.

The Department's briefing and argument in Clapper v. Amnesty International fully respected both of these duties. The Department described the surveillance authorized by Section 702 (and the provision's targeting and minimization requirements) accurately, and we made no statements that could be reasonably understood as denying the existence of "about" collection. Moreover, the possibility of then-classified, incidental collection of domestic communications, while of undoubted importance and interest to the public, was not material to the legal issue before the Supreme Court.

Wyden and Udall have now responded to the DOJ's letter and, not surprisingly, they're still very troubled by the DOJ providing false and misleading information to the Supreme Court in a key case challenging the NSA's surveillance under the FISA Amendments Act. First, the Senators note that, contrary to the DOJ's claims, both the briefings before the Supreme Court and the oral arguments included statements which actively misled the Court into believing Section 702 only applied to communications to or from a target -- and that clearly was not true.

More importantly, they note that, contrary to the DOJ's claims, it's pretty clear that this very much mattered as a part of the Supreme Court's reasoning:

The Justice Department's reply also states that the "about" collection "did not bear upon the legal issues in this case." But in fact these misleading statements about the limits of section 702 surveillance appear to have informed the Supreme Court's analysis. In writing for the majority, Justice Alito echoed your statements to the Court by stating that the "respondents' theory necessarily rests on their assertion that the Government will target other individuals -- namely their foreign contacts." This statement, like your statements, appears to foreclose the possibility of "about" colleciton.

We recognize that the inclusion of this misleading statement in the Court's analysis does not prove that the Court would have ruled differently if it had been given a fuller set of facts. Indeed, it is entirely possible that the Court would have ruled in exactly the same way. But while the Justice Department may claim that the Amnesty plaintiffs' arguments would have been "equally speculative" if they had referenced the "about" collection, that should be a determination for the courts, and not the Justice Department, to make.

While this seems like a technical issue, it's a huge deal. Effectively, the DOJ and Solicitor General Verrilli -- whether on purpose or not -- misled the Supreme Court on two key aspects of the 702 collection program, and it appears that the Supreme Court relied, in part, on both of those misleading statements in coming to its decision. The fact that the DOJ still appears rather unconcerned about how its misrepresentations may have impacted the courts is immensely troubling, not just because it may have resulted in an illegal and unconstitutional surveillance program continuing for many extra years, but also because it highlights the mendacity of the DOJ in trying to win cases at all costs, rather than actually trying to make sure the law is applied appropriately.

As the new letter from Udall and Wyden concludes:

As we have noted elsewhere, we are concerned that the executive branch's decade-long reliance on a secret body of surveillance law has given rise to a culture of misinformation, and led senior officials to repeatedly make misleading statements to the public, Congress and the courts about domestic surveillance. The way to end this culture of misinformation and restore the public trust is to acknowledge and correct inaccurate statements when they are made, and not seek to ignore or justify them.

It's unfortunate that it appears that so few in Congress are up in arms over this. The executive branch purposely misleading the judicial branch over constitutional issues is a very big deal, and most in Congress don't seem to want to have anything to do with it.

Filed Under: doj, donald verrilli, faa, fisa amendments act, mark udall, ron wyden, section 702, supreme court, surveillance, targets
Companies: amnesty international

Why Is The US Gov't Arguing In The Supreme Court To Reshape The Internet The Way Broadcasters Want It?

from the smacks-of-soft-corruption dept

This is hardly a surprise, given that we'd already covered the brief submitted by the US Solicitor General's office in support of the broadcasters and against Aereo, but the Supreme Court has agreed to allow the office to argue in court tomorrow in the Aereo case. Again, not surprisingly, the Solicitor General's office tends to have a lot of sway with the Supreme Court, so this is effectively the US government tipping the scales of justice in favor of Hollywood and against the internet, where the impact of a ruling against Aereo may be quite severe.

The Solicitor General's office has argued that a ruling for Hollywood won't impact the cloud, basically because they say so. But, as we've discussed, its argument there is truly bizarre, in that it just asserts that such a ruling "need not" impact the cloud, and never bothers to address the many reasons it will absolutely impact the cloud. In fact, many of the other briefs in support of the broadcasters' position insist that the broadcasters should win because all those other companies can "just get a license." Now think about that for a second. Imagine using your Dropbox if nothing can be uploaded until Dropbox confirms it has a license for the work. Right. That's not going to work.

And, of course, this is what this case is all about. Broadcasters have always hated the internet, because they can't control it. Broadcasters have spent decades honing a business model that is based around a "broadcast" model. That is, they send out a signal, and the masses "consume" it. The internet has shaken that up in so many ways, because the internet is not a broadcast system. It's a communications system that allows anyone to communicate with anyone. For decades now, broadcasters have worked hard to reshape the internet into a better "broadcast" medium. That's what nearly every copyright challenge is about. Giving more control to the big broadcasters, while making it harder for the everyday internet user to do anything online without getting it shut down.

Stifling cloud computing by pushing for every bit of content -- even those totally in control of an individual user -- to be "licensed" is just the latest such attempt to stifle the internet as a communications medium of the people, and to push it to be a broadcast medium for a few giant entertainment companies.

So, really, the big question is why anyone thinks it's appropriate at all for the US government to weigh in here. We've already noted the significant conflict of interest in that the Solicitor General himself, Donald Verrilli, spent many years as Hollywood's top lawyer, even arguing in the Supreme Court on some key copyright cases. And while he recused himself from all of this, it at least smacks of the "too cozy" relationship between Hollywood and the US government. Also recused is Verrilli's top deputy who, prior to rejoining the government a few years ago, was a top lawyer at Jenner & Block, the very same law firm representing the broadcasters in this case. Yes, they've recused themselves, but given that it's rather bizarre that the Solicitor General's office decided to get involved in this case in the first place, it certainly raises eyebrows about the reasons.

This is a dispute where the US government really has no role joining in the proceedings, but it has decided to assert itself, solely on the side of broadcasters and against the internet. Seems like an odd choice for an administration that has claimed to be so internet savvy.

Filed Under: broadcasters, cloud computing, copyright, donald verrilli, public performance, solicitor general
Companies: aereo, jenner and block

US Gov't Appears To Have Misled The Supreme Court About How The NSA Spied On Americans

from the whoa dept

We've written a few times now about the fact that US Solicitor General Donald Verrilli pretty clearly made false statements to the Supreme Court in a key case concerning NSA warrantless wiretapping. The case, Clapper v. Amnesty International, mainly focused on who had standing to challenge warrantless wiretaps performed by the NSA. The government argued that since there was no evidence that Amnesty International was spied on, it had no standing. The false statement involved the claim that the government would have to inform defendants in cases where warrantless wiretaps were used that that's how the info was gathered. Except the government didn't do that.

It turns out that might not have been the only misrepresentation from Verrilli -- and this next one may be even bigger, involving misleading the Supreme Court on a loophole that allowed the NSA to spy on tens of thousands of Americans.

As was noted earlier this year, upon realizing what happened, Verrilli was apparently furious, and the DOJ has now changed its policy to match with what Verrilli said -- they now will notify defendants, but it's clear that they never did so before.

But Senators Mark Udall, Ron Wyden and Martin Heinrich have sent Verrilli a letter urging him to "set the record straight" with the Supreme Court... but not just on that issue of disclosing. Rather they highlight somewhere else they think he did not paint the correct picture:

In Clapper v. Amnesty, the majority opinion characterizes as “highly speculative” the plaintiffs’ fear that “the Government will decide to target the communications of non-U.S. persons with whom they communicate,” and states that the “respondents’ theory necessarily rests on their assertion that the Government will target other individuals – namely their foreign contacts.” These and other statements in the opinion indicate the Court’s view that the only way the plaintiffs’ communications could be intercepted under the FAA is if those communications are to or from a foreign intelligence target.

Yet with the disclosure and declassification in recent months of relevant documents regarding Section 702, the role of ‘about’ collection under the FAA is now public, although not widely understood. In addition to authorizing the collection of communications to and from foreign, overseas targets, the FISA Amendments Act also has been secretly interpreted to authorize the collection of communications that are merely about a targeted overseas foreigner.

This form of collection allows the government – through the “upstream” collection under Section 702 – to collect any communication whose content includes an identifier, such as an email address, associated with an overseas foreigner who may be a foreign intelligence target. But according to the FISA Court’s October 2011 opinion, the ‘about’ collection likely results in the acquisition of “tens of thousands” of wholly domestic communications every year. In other words, tens of thousands of emails between law-abiding Americans are likely being collected – even though these Americans are not actually communicating directly with a foreign intelligence or terrorism target. As FAA collection was intended to target persons “reasonably believed to be located outside the United States,” and targeting procedures were intended to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States,” the FISA Court in its October 2011 opinion called this expanded FAA collection a circumvention of the “spirit” of the law and a “cause of concern for the Court.”

Just to hammer this point home, they're saying that despite everyone, including the Supreme Court, clearly reading the law to say that Section 702 of the FAA is supposed to be limited to surveillance on foreign targets, it actually also allows surveillance on communications about foreign targets -- and that likely includes tons of communications of Americans. And these communications were believed not to be available under this program, including by the Supreme Court.

The Senators ask Verrilli if he clearly informed the Supreme Court of this at any point, and if not, suggest that he correct the record.

We believe that a formal notification to the Supreme Court of the government’s misrepresentations in the case — both relating to its notice policy and relating to its practice of ‘about’ collection under Section 702 of the FISA Amendments Act — would be an important step in correcting the public record and would be in the interests of the public as well as of the Administration and the Supreme Court.

This seems rather important -- and a point that not many reporters have covered (which also might explain why the Senators are raising it, and noting that the revelation "is not widely understood.") This is a way of alerting people to the simple fact that the NSA has interpreted Section 702 to mean it can collect any communication deemed to be "about" a target, even if the communication is not from or to that target.

Filed Under: donald verrilli, faa, fisa, fisa amendments act, james clapper, mark udall, martin heinrich, nsa, ron wyden, section 702, solicitor general, supreme court, target
Companies: amnesty international

Feds Wait Until Late Friday To Release Details Of Criminal Case That Used NSA Surveillance, Which They'd Kept Secret

from the friday-night:-where-news-goes-to-die dept

Back in July, the NY Times made it pretty clear that United States Solicitor General Donald Verrilli almost certainly lied to the Supreme Court, concerning how evidence obtained via NSA surveillance techniques would end up in court. As you may recall, the lawsuit in question involved the ACLU, with the government arguing that the ACLU had no standing. The Supreme Court asked a basic question about whether or not anyone could possibly have standing then to challenge the law -- and Verrilli insisted (and the justices relied on) the claim that if the feds used data collected under these questionable surveillance statutes, that the defense team would be told about this, and they could challenge the constitutionality of the collection. Except... no defendant had ever been told any such thing. And then someone noticed that Senator Dianne Feinstein, in defending the NSA surveillance, had insisted that it was key in a bunch of cases -- meaning one of them was lying. This, apparently, got Verrilli quite upset at the various national security lawyers who had looked over his defense and who apparently chose not to tell him that what he was saying about the government telling defendants stuff wasn't, in fact, true. As was reported a few weeks ago, Verrilli then led a fierce debate within the administration, and said that a policy change was necessary. And, to kick it off, they were searching for a single case in which they would reveal such info was used.

Of course, this allowed the feds to cherry pick their case... and the date and time to release the "news." So, of course they chose Friday night, which is when the government always tries to release bad news. So we're taking that news and discussing it the following Monday, because this is big and it deserves serious attention. Late Friday, the government admitted that it had used information gleaned via programs under the FISA Amendments Act in the criminal case against Jamshid Muhtorov, who was charged in January 2012 with "providing material support to the Islamic Jihad Union, a designated terrorist organization based in Uzbekistan." Much of the original complaint against Muhtorov involves discussions about intercepted calls and emails, though it's unclear how many (if any) of those were done under the FAA or other law enforcement authorities.

The new notice in the case doesn't reveal very much at all, other than that the government intends to "offer into evidence or otherwise use or disclose in proceedings... information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the" FAA. Basically, this case now is very likely to become the key case in testing the constitutionality of at least some aspects of the FISA Amendments Act surveillance efforts (which include the "upstream" tapping of the internet backbone via telcos, though it's not clear if that was used in this particular case).

In other words, this case just got a lot more interesting -- though it's clear that the feds tried very carefully to pick a case where the facts work strongly in their favor. I would imagine, however, that various public interest and civil liberties groups are gearing up to see how they might help out in the case.

Filed Under: dianne feinstein, donald verrilli, fisa amendments act, jamshid muhtorov, nsa, nsa surveillance, standing

Dianne Feinstein's Bragging About NSA Surveillance Program May Finally Result In It Being Declared Unconstitutional

from the ooops dept

This is quite an incredible story that's unfolding about a new opportunity for a Constitutional challenge to the FISA Amendments Act, which has enabled broad NSA surveillance. If you haven't been following the details (and even if you haven't been following all of this closely), the specifics may be a bit confusing, so we'll try to go piece by piece through the history here to explain the events leading up to a new Constitutional challenge being placed on the law, which the Supreme Court had previously effectively wiped out -- in large part due to false information presented by the Solicitor General, who now appears to be not at all happy the intelligence community led him to lie to the Supreme Court. And it may have all unravelled because of Dianne Feinstein's gloating and bragging about how important the FISA Amendments Act is.

First up: the FISA Amendments Act (FAA) was passed in 2008, after Congress claimed that the intelligence community was hamstrung in important areas of surveillance. Much of the debate over the law was focused on the fact that it gave telcos retroactive immunity for anything illegal they might have done regarding President Bush's warrantless wiretapping program, which was only revealed by the NY Times a few years earlier. But, even more important than that was that the FAA more or less authorized continued warrantless wiretapping by the intelligence community. In 2011, the FAA was up for renewal. Some in the Senate sought to use the distraction (that year) over the "debt ceiling" to sneak through an early renewal with no debate, and Senator Ron Wyden put a hold on it, demanding more answers about how many Americans were being spied on. He eventually lifted the hold in exchange for a one-year extension and a promised debate over the FAA.

Fast forward to the end of last year, with the FAA set to expire yet again, and Senate Intelligence Committee boss Dianne Feinstein, who had originally made that "deal" with Wyden, tried very hard to avoid having any debate. Eventually, at the very end of December, she allowed a brief debate, in which she showed up up to insist that the FAA had to be renewed or we'd all be at risk. As we noted at the time, her reasoning was somewhat laughable, where she held up a pretend piece of paper with a supposed "classified" reason for why the FAA was so important. Remember that speech, because it's going to become quite important a little later on in this story.

Parallel to all of this, there was a legal fight making its way through the courts, brought by the ACLU to challenge the Constitutionality of the FAA. The big question was whether or not the courts could be convinced that the ACLU had "standing" to sue, since it couldn't prove that it had been spied on directly. Eventually, in a narrow 5-4 decision, the Supreme Court said that the ACLU had no standing. Of course, the key thing that had concerned the Justices the most was the simple question: if the program is secret, then could anyone ever challenge the Constitutionality of the program?

Solicitor General Donald Verrilli, who argued the case on behalf of the government, told the Supreme Court that of course people could have standing to challenge the law, and that the government would be required to inform defendants in cases where such information was used that it was collected under the FAA. This point is what pushed the Supreme Court over the edge to rule against the ACLU. As they noted in the majority decision:

...if the Government intends to use or disclose information obtained or derived from a §1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.... Thus, if the Government were to prosecute one of respondent-attorney’s foreign clients using §1881a-authorized surveillance, the Government would be required to make a disclosure.... In such a situation, unlike in the present case, it would at least be clear that the Government had acquired the foreign client’s communications using §1881a-authorized surveillance.

Okay, now the law has been in place since 2008. If what Verrilli said was true, then, um, shouldn't there have been some cases between now and then where the FAA-enabled wiretapping was used? And if that's true, then it should have been disclosed in the various cases. Except, there is no case on record where it had been disclosed.

Right, so now we jump back to Feinstein's grandstanding about why we need to keep the FAA. In her speech on the floor, she announced that the FAA was necessary in a long list of cases:

"I've asked the staff to compile arrests that have been made in the last four years in America on terrorist plots that have been stopped. And there are 100 arrests that have been made since 2009 and 2012. There have been 16 individuals arrest just this year alone. Let me quickly just review what these plots were. And some of them come right from this program. The counterterrorism come and the information came right from this program. And again, if Members want to see that they can go and look in a classified manner.

[proceeds to list out eight "examples" of terrorism arrests -- two with names, six are just general descriptions of plots]

... and it goes on and on and on. So this has worked. And you know, as the years go on, the intelligence becomes the way to prevent these attacks. Now that the FBI has geared up a national security unit, they've employed 10,000 people and information gained through programs like this, through other sources as well, is able to be used to prevent plots from happening. So in four years 100 arrests to prevent something from happening in the United States, some of which comes from this program. So I think it's a vital program.

The lawyers for the defendants in the two named cases suddenly recognized an issue. They were named in this list, but at no point had they been told that evidence was gathered under this program. So they asked. And... the government refused to tell them the details. The NY Times took notice of this, pointing out that either Feinstein lied in her Senate statement or Verrilli lied to the Supreme Court:

In a prosecution in Federal District Court in Fort Lauderdale, Fla., against two brothers accused of plotting to bomb targets in New York, the government has said it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, or FISA, which authorized individual warrants. But prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance.

Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar.

To his credit, it appears that once this all became clear, Verrilli had a crisis of conscience, suggesting that he did not knowingly lie to the Supreme Court, but honestly believed that the DOJ would reveal its use of these programs in cases. From that new NY Times piece by Charlie Savage, it's reported that Verrilli was pretty angry about being misled and demanded some answers:

As a result, Mr. Verrilli sought an explanation from national security lawyers about why they had not flagged the issue when vetting his Supreme Court briefs and helping him practice for the arguments, according to officials.

The national security lawyers explained that it was a misunderstanding, the officials said. Because the rules on wiretapping warrants in foreign intelligence cases are different from the rules in ordinary criminal investigations, they said, the division has long used a narrow understanding of what “derived from” means in terms of when it must disclose specifics to defendants.

Either way, Verrilli followed through on this, and apparently kicked off a major "internal debate" over whether or not there was "any persuasive legal basis for failing to clearly notify defendants that they faced evidence linked to the 2008 warrantless surveillance law, thereby preventing them from knowing that they had an opportunity to argue that it derived from an unconstitutional search." According to the article, Verrilli "argued that withholding disclosure from defendants could not be justified legally." Eventually, even the NSA and FBI's lawyers and James Clapper's office agreed. The decision was made to start revealing this information going forward.

However, they also agreed to reveal to at least one defendant that the FAA was used to collect evidence against them, and that this had not been revealed. Of course, this means they get to cherry pick the "right" case.

The ACLU, however, is not waiting around. Almost immediately, it filed a case about this, arguing that the government had illegally hidden this information in response to a FOIA request. It seems like that may be the most obvious procedural way of re-raising this question, as I have no idea if there's some way for the ACLU to directly petition the Supreme Court to reopen the case, noting that the key piece of information the Justices relied on to make their ruling was false (though, apparently, from a Solicitor General who had been misled by prosecutors).

Now, to wrap this all up, we bring it back around to Feinstein's speech in the Senate. Remember, the whole point of her speech was to directly argue for the reapproval of the FAA. And while she equivocated a few times in describing what programs were responsible for the arrests, she clearly made references to "this program" working. However, when the lawyers for one of the defendants named by Feinstein asked the Senate Intelligence Committee for some clarification, Morgan Frankel, a Senate Intelligence Committee lawyer, responded by arguing that Feinstein wasn't actually referring to the FAA program. Seriously.

Notwithstanding that she was speaking in support of reauthorization of Title VII of the Foreign Intelligence Surveillance Act, Senator Feinstein did not state, and she did not mean to state, that FAA surveillance was used in any or all of the nine cases she enumerated, including Mr. Daoud's case, in which terrorist plots had been stopped. Rather, the nine cases the Chairman sumamrized were drawn from a list of 100 arrests arising out of foiled terrorism plots in the United States between 2009 and 2012 compiled by the staff from FBI press releases and other public sources.

[....] To summarize, nothing in Senator Feinstein's remarks was intended to convey any view that FAA authorities were used or were not used in Mr. Daoud's case or in any of the other cases specifically named. Rather, her purpose in reviewing several recent terrorism arrests was to refute the "view by some that this country no longer needs to fear attack." Thus, because Senator Feinstein was neither relying on, nor attempting to convey, any information about the use or non-use of FAA authorities in any of the nine cases, there are no "assessments, reports, and other information" in the Committee's possession to which Senator Feinstein referred in her comments, pertaining to FAA surveillance with respect to Mr. Daoud's case.

Did you get that? So, what they're now saying is that Senator Feinstein went to the floor of the Senate to argue strongly in favor of renewing the FAA, and she named a bunch of cases, clearly stating that this program was necessary because of those cases -- but she didn't mean to imply that it was ever actually used in any of those cases. And, in the meantime, we now find out that even in cases where it has been used, no one's been told about it, despite the law requiring defendants to be told -- and the Solicitor General telling the Supreme Court they would be told.

So, it appears that both Verrilli and the Supreme Court got duped by the intelligence community, while Feinstein clearly misled the Senate and the American public by pretending that the FAA had been used to stop terrorism, but when called on it, now pretends she meant no such thing. Thankfully, however, her attempt at misleading the public by bragging about these arrests may have now (finally) kicked off the legal rationale for a case to prove that the FAA is, in fact, unconstitutional.

Filed Under: constitutional, dianne feinstein, donald verrilli, faa, fisa amendments act, nsa, nsa surveillance, standing

Either The Solicitor General Lied To The Supreme Court, Or Senator Feinstein Lied To The Public About Warrantless Wiretapping

from the pick-one dept

While there's been plenty of attention over the last month or so concerning the revelations from Ed Snowden about NSA surveillance, there have been a series of important ongoing lawsuits that tried to challenge the various aspects of the surveillance efforts. Unfortunately, most of these have ended badly, leading some to wonder if there even is any way at all to legally challenge these programs. At the end of 2011, for example, in a case testing the legality of the telcos helping the government with warrantless surveillance, Hepting v. AT&T, one of the key reasons why the court rejected the challenge was because it basically said, "well, you can always sue the government, but the government has the right to absolve companies of such wrongdoing." Except that, as the Supreme Court ruled earlier this year, because the government keeps the program a complete secret, no one has standing to sue. That is, unless you can prove that you were spied on via this specific program, you can't sue because there's been no harm.

The Supreme Court Justices were clearly troubled by the idea that the government could implement a secret surveillance program that could never be challenged in court, and homed in on that key point in questioning the Solicitor General of the US (and former top RIAA litigator), Donald Verrilli. As the NY Times notes, Verrilli insisted that it simply was not true that no one would ever have standing, because if the government ever used information from such surveillance programs in a court case against someone, the government would have to reveal that the info came via that program.

“Is there anybody who has standing?” Justice Sonia Sotomayor asked.

Yes, said Mr. Verrilli, giving what he called a “clear example." If the government wants to use information gathered under the surveillance program in a criminal prosecution, he said, the source of the information would have to be disclosed. The subjects of such surveillance, he continued, would have standing to challenge the program.

Got that? Of course people would have standing, because the government has to tell them where the information came from. So those people could always challenge the program. When the eventual Supreme Court ruling came out, the majority decision relied very heavily on this particular claim:

...if the Government intends to use or disclose information obtained or derived from a §1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.... Thus, if the Government were to prosecute one of respondent-attorney’s foreign clients using §1881a-authorized surveillance, the Government would be required to make a disclosure.... In such a situation, unlike in the present case, it would at least be clear that the Government had acquired the foreign client’s communications using §1881a-authorized surveillance.

Ok. Now, here's the important part. In defending the FISA Amendments Act (FAA), which is what enabled these kinds of warrantless wiretaps, politicians have been pointing to all of those "examples" where this program was supposedly instrumental in "stopping terrorists." And this includes a few cases that involved federal prosecutions. Senator Dianne Feinstein, the staunchest defender of these programs, has called out two specific prosecutions as "specific cases where FISA Amendments Act authorities were used," saying that "these cases show the program has worked."

While it's arguable whether or not these cases actually showed whether or not the program worked, they do give us two cases where, according to the US Solicitor General and the Supreme Court, the feds were required to reveal to the defendants the source of the information. And take a wild guess whether or not the government actually informed the defendant how it obtained the info? You're psychic!

In a prosecution in Federal District Court in Fort Lauderdale, Fla., against two brothers accused of plotting to bomb targets in New York, the government has said it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, or FISA, which authorized individual warrants. But prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance.

Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar.

In fact, the magistrate judge in the Florida case has told the government it needs to disclose whether or not the surveillance was based on the FAA, but the government, so far, is refusing to say anything, and is asking the court to reconsider.

As far as I can tell, there are a few possibilities here, none of them good:

1. Solicitor General Donald Verrilli lied to the Supreme Court about whether or not the federal government would need to reveal the source of surveillance info obtained under the FAA.
2. Senator Dianne Feinstein lied to Congress about the FAA supposedly being instrumental in those cases.
3. The US Attorneys are now withholding information they are, by law, required to reveal.

It's possible that the reality is a combination of all three. But I can't see how you can explain the present situation without at least one of the three statements above being true.

The ACLU has called this "a shell game" and it's that and more. No matter where you point for the legal authority to challenge these programs, the government insists you have to look elsewhere. Can't sue the companies, but can sue the government. Can't sue the government unless you can prove standing. Can't prove standing unless you're in a case which involves this surveillance, at which point we have to tell you. Of course, in cases where it's been revealed that this kind of surveillance is used, well, now the government insists it doesn't have to admit that. Basically, the feds are going to keep trying to avoid ever having to face an actual legal challenge on this, which suggests they know the reality: the program is illegal and unconstitutional. If they were sure that it was a legitimate, constitutional program, why not just stand up in court and say that?

Filed Under: dianne feinstein, donald verrilli, faa, fisa amendments act, standing, supreme court, warrantless wiretapping

Obama Nominates Former Top RIAA Lawyer To Be Solicitor General

from the well-that's-just-great dept

This has actually been rumored for quite some time, but now it's official. President Obama has nominated one of the RIAA's top litigators, Donald Verrilli to replace Elena Kagan as Solicitor General. Verilli, of course, was instrumental in leading the RIAA's case against Grokster. He was apparently also involved in Viacom's fight against YouTube (according to Wired -- I didn't know that previously). In other words, he's been the copyright maximalists' go to guy in court for extending and twisting copyright laws in anti-competitive and free speech-destroying ways. So, it seems we should expect a pretty strong defense of the government seizing domain names in violation of the First Amendment.

Of course, I find it kind of amusing that Darrell Issa and anti-Google lobbying group Consumer Watchdog are still claiming that the administration is in Google's pocket. As far as I know, many of the former top Googlers who did go to the White House have since left (some in frustration), while Obama has been hiring all sorts of folks who are about as anti-Google as can be into top roles. Beyond Verilli, Obama has also hired Bill Daley, who had been president of SBC (now AT&T), which has gone out of its way for years to try to take down Google. Where exactly is Google's "power" in the administration these days?

Filed Under: donald verrilli, elena kagan, president obama
Companies: riaa